In August 2016, the Centers for Disease Control (CDC) confirmed that there are now cases of the Zika virus, which were locally acquired from mosquitoes in Florida. The spread of the virus domestically at this point may be inevitable, and health consequences affect not only pregnant women and their babies (who may be born with profound disabilities including microcephaly) but even healthy adult workers. This has triggered significant discussion about how to protect outdoor workers.
WORKPLACE FREE FROM RECOGNIZED HAZARDS
Now, OSHA has gotten into the act, issuing interim guidance that will be updated as more information becomes available on this emergent workplace hazard. OSHA reminds employers that they have an obligation to provide a workplace “free from recognized hazards” to its workers, under threat of General Duty Clause citations and their maximum penalty of $124,709 per violation.
Occupational contraction of Zika falls within the scope of this “general duty” and OSHA has previously issued similar enforcement warnings with respect to the H1N1 pandemic flu and the Ebola virus. For its part, the National Institute for Occupational Safety & Health (NIOSH) is monitoring the spread of Zika in the continental U.S. and its territories, as well as in other regions where workers may have visited and become infected before returning to the U.S.
CASES CONTINUE TO GROW
The case statistics continue to grow disturbingly. As of August 10, 2016, the continental U.S. has nearly 2,000 travel-associated Zika cases, 22 sexually transmitted cases, and 6 locally mosquito-acquired cases; but when U.S. territories are included, they add 31 travel-related cases and over 6,500 locally acquired cases. The vast majority of cases currently are in Puerto Rico, where a public health emergency has been declared by the U.S. government.
In terms of adverse health consequences, there has been one infant Zika death reported in Texas, and the potential number of infected mothers and infants is still being tabulated. Meanwhile, the continental U.S. and its territories have recorded 26 Zika-related cases in adults of Guillain-Barré syndrome. Guillain-Barré syndrome is a disorder in which the body’s immune system attacks part of the peripheral nervous system.
OSHA ZIKA WARNING
In its warnings to employers, OSHA notes that the Zika virus has the potential to spread wherever mosquitoes capable of spreading the disease are found, including the southern and southwestern states. Symptoms are often mild and begin within a week of being infected, but often those infected are unaware of the illness even though they can sexually transmit it to others for an extended period of time. The most common symptoms are fever, rash, joint pain, and “pink eye” but victims may also have muscle pain, headache, or even neurological and autoimmune complications. Infected infants can suffer brain defects, eye and hearing deficits, and impaired growth.
OSHA urges employers to protect workers from getting mosquito bites, given that there is no currently approved Zika vaccine and no specific treatment for infected workers. OSHA expects employers to train workers now about their risks of exposure to Zika, both via mosquito bites and direct contact with infectious blood and bodily fluids (e.g., first aid providers and health care workers), and also on how to protect themselves. Workers who are, or may become pregnant—or whose sexual partners may become pregnant—should be trained on the modes of transmission and the link to birth defects.
If occupational exposure and transmission occurs, and no mitigating action was taken to reduce exposure to the extent feasible, employers could have liability for worker’s compensation damage claims, or personal injury tort claims, in addition to possible OSHA citations.
Those who could come in contact with infectious bodily fluids may need specialized personal protective equipment and should follow the protocols in OSHA’s Bloodborne Pathogens standard (“BBP,” 29 CFR 1910.1030).
TAKING PRECAUTIONS
Outdoor workers clearly are at a heightened risk of exposure, and OSHA recommends the following employer actions:
- Inform workers about their risks of exposure through mosquito bites and train them how to protect themselves (check the CDC Zika website to track Zika-affected areas).
- Provide insect repellants and encourage their use, in accordance with manufacturer’s recommendations, including how to properly combine the use of repellant and sunscreen.
- Provide workers with clothing that covers their hands, arms, legs, and other exposed skin, and consider providing hats with mosquito netting to protect the face and neck.
Encourage warm-weather workers to wear light-weight, loose-fitting clothing that will be a barrier to mosquitos; provide workers with sufficient shade, water, and rest, and monitor them for heat-illness symptoms. - Eliminate sources of standing water (e.g., tires, buckets, wheelbarrows, cans, and bottles) whenever possible to reduce mosquito breeding, and train workers about the importance of getting rid of standing water where mosquitos can proliferate at the worksite.
- Consider reassigning workers who are or may become pregnant, or male workers whose partners may become pregnant, by reassigning them to indoor tasks during the outbreak (but be careful not to violate any workers’ rights under the Pregnancy Discrimination Act provisions of the Civil Rights Act).
Workers should be urged to monitor for symptoms, and to seek prompt medical attention if there are concerns about disease infection. If a worker does become infected, they should be urged to rest, drink fluids, take fever and pain reducing medications, and to speak with a health care professional before taking any prescription drugs. In addition, to prevent transmission via sexual contact, condom use or abstinence is encouraged by the CDC. If the exposure occurs due to blood-borne transmission in the workplace, employers must comply with the medical evaluation and follow-up requirements in the BBP standard, and should consider options for granting sick leave during the infectious period.
Finally, OSHA reminds employers that workers are protected under Section 11(c) of the OSH Act from retaliation arising from the worker raising concerns about workplace safety and health. Employers similarly cannot retaliate against employees who report an occupational injury or illness, including Zika infection.
For additional information, review the OSHA guidance: www.osha.gov/Publications/OSHA3855.pdf ■
About the Author: Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a nine-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
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Modern Contractor Solutions – August 2016
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